Nowadays, there is still a debate on the different forms of protection that could protect culinary or gastronomic creations by means of industrial and intellectual property rights.
Regarding Copyright, it is necessary to consider that, in order to carry out the protection of the flavor or taste perception of a product, it must be defined whether the “flavor” or taste perception of a product can be considered an original “piece of work”, i.e., an author’s intellectual creation.
However, a recent European case law (case of Levola Hengelo BVvs.Smilde Food BV593) prohibits considering a “flavor” as a piece of work for the purpose of Copyright protection (Guideline 2011/29/EC), given that the taste perception requires its objective delimitation supported on something that can be tangible (recipe) or intangible, by means of the product or gastronomic creation. It should be noted that Copyright grants an exclusive right on the reproduction of the physical medium which the idea is expressed on. All of which is due to the difficulty of delimiting the object to be protected, given the inherent subjectivity to taste perception.
An alternative protection for taste perceptions would be through Trademark Law as an unconventional brand. However, we face a series of difficulties due to the subjectivity in perception regarding its distinctive capacity and representation; therefore, this means of protection is also not enough, as is the case for Copyright.
If we turn to protection by means of an invention patent for a gastronomic creation, we must consider that its development must have a technical nature, which would allow for the protection, for example, of the devices used in the elaboration of the gastronomic creations, from a pressure cooker, a pan or even a food processor.
On the other hand, a culinary recipe would fall into a procedure for the procurement of a product (the final creation), for which a protection through a patent could, in principle, be sought. However, any invention intended to be protected in this manner must comply, among other things, with the patentability requirements: novelty, inventive step, and industrial applicability. While novelty requires that there be no previous disclosure equal to the development intended to be protected and industrial applicability requires the invention to be marketable, the requirement of inventive step hinders the protection of recipes, given that it is difficult to show that the order of the stages in the production process or the quantities of each ingredient have a different technical effect to that already known. Inventive step is based on the perception of how obvious the own invention can be for an average expert in the area. Varying the proportions of ingredients or substituting equivalent foods could hinder the concession of a patent in these cases.
There is a title of industrial property that allows for the protection of more modest developments or compositions (food preparations): the utility model. This title provides a 10-year protection as of its application (in contrast to 20 provided by a patent) and its inventive step requirement is less demanding. Therefore, in these last few years, the utility model has become firmly established in the protection of gastronomic developments. This title, once granted, is a legal tool that is useful in excluding competitors from the market or fighting against potential offenders.
Due to all the above, its protection is subject to future scientific advances to be able to objectively delimit and circumvent the subjective nature of a taste perception.
However, the above (the “recipe” itself and, therefore, the “flavor”) could be protected by the figure of trade secret and, for this purpose, must comply with the requirements demanded by the Law on Trade Secrets (Law 1/2019, from February 20, on Trade Secrets (LSE)). Said Law considers any technological, scientific, industrial, commercial, organizational, or financial information or know-how, a trade secret. The formulation of a scent, a flavor, non-patentable or not yet patented inventions, commercial strategies, and financial plans, among others, could be included, provided the know-how or information obtained by the company has, either a real or potential business value, by the fact of keeping them a secret, offering a competitive advantage to its owner. Whether it be secret, i.e., known by a limited number of people and cannot be deducted by experts of the area through observation or reverse engineering; or be subject to reasonable or specific measures to keep these a secret, measures that will obviously have to be adopted by the owner of said information or know-how.
Therefore, the taste perception of a product or of a gastronomic creation could be protected additionally by the figure of a trade secret, provided it can comply with the requirements established by the law.
Authors: Lorena Vega, Patent Specialist, and Carmen Sánchez-Puelles IP Consultant at ClarkeModet Spain.